Under the proviso to Section 49 of the Registration Act, 1908, an unregistered agreement of sale is admissible as evidence of a contract in a suit for specific performance or for a collateral transaction, regardless of whether it mentions delivery of possession.

Digitally signed CO-OPERATIVE HOUSING SOCIETY

by RUPA V

Location: H IGH ANDHERI (W), MUMBAI-400053.

COURT OF KARNATAKA

THIS W.P. IS FILED UNDER ARTICLE 227 OF THE CONSTITUTION OF INDIA, PRAYING TO ISSUE WRIT OF CERTIORARI OR ANY OTHER APPROPRIATE WRIT OR ORDER QUASHING THE IMPUGNED ORDER DTD:6.10.2016 PASSED IN O.S.NO.856/2013 ON THE FILE OF PRINCIPAL CIVIL JUDGE AND JMFC MANGALORE AS PER ANNEXURE-A AND DIRECT THE TRIAL COURT TO PERMIT THE PETITIONER TO MARK THE UNREGISTERED AGREEMENT OF SALE DTD:5.3.2005 FOR COLLATERAL PURPOSE IN TERMS OF SECTION 49 OF INDIAN REGISTRATION ACT & ETC.

THIS PETITION, COMING ON FOR PRELIMINARY HEARING IN 'B' GROUP, THIS DAY, ORDER WAS MADE THEREIN AS UNDER:

CORAM: HON'BLE MR. JUSTICE VIJAYKUMAR A. PATIL

ORAL ORDER

This petition is filed challenging the order dated 06.10.2016 passed in O.S.No.856/2013 by the Principal Civil Judge and JMFC, Mangalore (hereinafter referred to as the 'Trial Court').

Sri.Sachin B.S., learned counsel appearing for the petitioner-plaintiff No.1 submits that the plaintiffs have filed a suit in O.S.No.856/2013 for the relief of specific performance of the agreement of sale dated 05.03.2005. In the said suit, the plaintiffs produced the agreement of sale dated 05.03.2005. However, the respondent No.1-defendant opposed the marking of the said document on the ground that the said document is unregistered and also indicates the delivery of possession. It is submitted that the Trial Court accepted the opposition of the defendant and refused to mark the said document in the evidence. Being aggrieved, the present petition is filed. It is further submitted that the Trial Court has failed to take note of the fact that the plaintiffs have received the possession of the property much prior to the agreement of sale which is evident from the covenant of the agreement. Hence, under the proviso to Section 49 of the Registration Act, 1908 (hereinafter referred to as 'the Act'), the document is required to be marked as evidence in the trial. In support of his contentions, he placed reliance on the decision of the Hon'ble Supreme Court in the case of MURUGANANDAM Vs. MUNIYANDI (DIED) THROUGH LRS, 2025 SCC Online 1067. Hence, he seeks to allow the petition.

Miss Pooja Parvathi U, learned counsel appearing for Sri.G.Ravishankar Shastry, learned counsel for the respondent No.1 supports the order of the Trial Court and submits that admittedly the agreement of sale is an unregistered instrument. The averment of the plaintiff clearly indicates that the plaintiffs got the possession of the property under the agreement. Hence, without there being any registration of such instrument, the production and marking of the said document during the course of the evidence, does not arise. Hence she seeks to dismiss the petition.

I have heard the arguments of the learned counsel for the petitioner, the learned counsel for the respondent No.1 and perused the material available on record. I have given my anxious consideration to the submissions advanced on both the sides.

The material on record indicates that the plaintiff has filed O.S.No.856/2013 seeking for enforcement of the agreement of sale dated 05.03.2005 and other reliefs. The defendant contested the said suit, denied the averments made in the plaint and sought for dismissal of the suit. The matter was posted for trial. During the course of evidence, the plaintiffs produced the agreement of sale dated 05.03.2005 and sought for marking of the said document as evidence which was rejected by the Trial Court by the impugned order on the ground that the document cannot be marked as there is delivery of physical possession but the instrument is unregistered. In my considered view, the Trial Court has committed a grave error by ignoring the effect of the proviso to Section 49 of the Act. The Hon'ble Supreme Court, in the aforesaid decision, at paragraphs 9 and 10 has held as under:

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